Big Conclusions to Big Cases

It seems you can’t go a week without hearing about a new case for copyright infringement against Taylor Swift and it turns out not all of them are so frivolous. There are other big names in the news like In ‘N Out Burger, The Happy Birthday Song and more that are coming into the spotlight this week as the world of IP never ceases to fascinate.

Also on the blog this week:

Guest post: A European perspective on the CAD

Why China watchers need to pay attention to IP

The latest around the Asia-Pacific

Some Swift conclusions

Another week, another round of Taylor Swift IP stories.

as The Guardian reported
, the pop star settled a trade mark
dispute with California clothing company Blue Sphere. Swift had
been sued for allegedly infringing Blue Sphere’s
Lucky 13 mark when she introduced clothing bearing the slogan
Lucky 13.

Swift’s lawyers had accused Blue Sphere and its
chief executive Robert Kloetzly of trying to bully the pop star
into a settlement, and asked the court to protect her from
“prejudice and harassment”. However, in August Judge Douglas
McCormick of the Central District of California rejected this
argument and also rejected Swift’s claim that her
tour schedule made deposition impossible. Details of this
week’s settlement between the two parties was not

Taylor Swift shake it off orderThe pop star had a more positive
outcome from the same court this week when she won a copyright
case over her hit “Shake It Off”,
reports Huffington Post
. Jesse Braham sued Swift claiming
the song used lyrics from his song “Haters Gone Hate”. Judge
Gail Standish dismissed the case this week, while doing her
best to shoe horn as many references to Swift songs as she
could into the order.

“At present, the Court is not saying that Braham can never,
ever, ever get his case back in court,” she wrote in
her order denying the request to proceed
. “But, for now, we
have got problems, and the Court is not sure Braham can solve
them. As currently drafted, the Complaint has a blank space
– one that requires Braham to do more than write his
name. And, upon consideration of the Court’s explanation in
Part II, Braham may discover that mere pleading Band-Aids will
not fix the bullet holes in his case. At least for the moment,
defendants have shaken off this lawsuit.

Braham had claimed Swift copied lyrics from his song, which
includes the hook: “Haters gone hate, playas gone play / Watch
out for them fakers, they’ll fake you every day.”
Swift’s song includes the chorus:  “Cause the
players gonna play, play, play, play, play. And the haters
gonna hate, hate, hate, hate, hate . And the fakers
gonna fake, fake, fake, fake, fake.”

Lastly, Swift’s application for a trade mark on
was published for opposition this week

Mark Cuban on patents

The IP Watchdog blog this week ran
an interesting interview with businessman Mark Cuban
, who
has long called for software patents to be abolished and also
donated $250,000 to the Electronic Frontier Foundation to
create the Mark Cuban Chair to Eliminate Stupid Patents.
However, recently it has seemed that Cuban appears to be
looking to assert his patent rights
in the so-called
hoverboard market.

Cuban said the patent system doesn’t protect
anyone. “I have invested in more than 150 companies and never
has having or not having a patent impacted the final decision,”
he told IP Watchdog’s Gene Quinn. “Small
businesses can and do become great without patents. The problem
for little guys with patents is that no patent lives in a
vacuum. Particularly with software and technology. There is
always a work around and you can always find a patent that
enables the big guy to sue the little guy.”

Cuban said software patents should be gotten rid of or at
worse llimited to five or seven years. He also defended his
decision to invest in Vringo as a hedge. The whole interview is
well worth a read.

The song that never ends

Just when you thought the copyright on Happy Birthday to You
was effectively in the public domain after
a judge ruled that Warner/Chappell did not hold the rights

to the song in September, a new challenger has emerged.

Warner ChappellAs
Techdirt reported
, the heirs of the Hill sisters are
claiming they own the copyright to the sing if Warner/Chappell
do not.

“[The] applicants have been accepting royalties from the
Defendants for over twenty (20) years as the beneficiaries of
Patty and Jessica Hill’s estates pursuant to what
they believed was a valid assignment from the Hill Sisters to
the Summy Co,” said The Hill Foundation and the Association for
Childhood Education International. “As a result of the
Court’s ruling, it is now likely that applicants
are the valid owners of the copyrights to the Song, and none of
the current parties are able to adequately represent
Applicants’ interests. For these reasons,
applicants respectfully request that this motion to intervene
be granted, allowing them to protect their interests in the
copyrights to the “Happy Birthday to You” lyrics.”

Gilstrap tries new mousetrap

Judge Rodney Gilstrap is the busiest patent judge in the US,
with a fearsome docket. No wonder, then, that he has been known
to take action to ease his workload. In June Gilstrap
issued an order requiring defendants in patent infringement
cases to get permission
to file an early motion seeking
judgment that a patent is invalid under the Supreme
Court’s Alice v CL decision.

Eastern District of TexasThis week he was at it again. As
the EDTexweblog noted
: “Judge Gilstrap apparently
celebrated Veteran’s Day by issuing a new standing order that
tries out a different mouse trap on the issue of pre-Markman
101 motions.”

In this week’s standing order (the PDF of which
can be viewed
), Gilstrap said “the Court, in seeking to efficiently
manage its docket, believes such efficiency is enhanced by
early input as to the propriety or lack thereof regarding claim
construction prior to consideration of such motions.”

Parties seeking to file pre-Markman hearing dispositive
motions under Section 101 prior to entry of the
Court’s claim construction order must include
certification that:

–        The
parties agree that prior claim construction is not needed to
inform the Court’s analysis as to

–        The
parties disagree on whether prior claim construction is not
needed to inform the Court’s analysis as to

In-N-Out delivers trade mark suit

Normally known for a different kind of beef, California
burger chain In-N-Out Burger has sued Minnesota company
DoorDash for delivering its food and displaying its trade marks
on the DoorDash website, according to
a briefing from Winthrop & Weinstine.

In-N-Out logo“Defendant’s use of
plaintiff’s famous trade marks implies that
defendant not only delivers In-N-Out products to its customers,
but that the quality and services offered by defendant is the
same as if consumers had made purchases directly from
plaintiff,” In-N-Out said in its complaint. “Upon information
and belief, the quality of services offered by defendant does
not at all comport with the standards that consumers expect
from plaintiff’s goods and services. Further,
plaintiff has no control over the time it takes defendant to
deliver plaintiff’s goods to consumers, or over
the temperature at which the goods are kept during delivery,
nor over the food handling and safety practices of
defendant’s delivery drivers.”

The complaint
added that while In-N-Out adheres to the Food
Code, DoorDash does not adhere to such regulations, including
with regard to compliance with required food safety and
handling practices.”

Winthrop & Weinstine said DoorDash’s legal
defence is likely to be nominative fair use.

David Grace, partner and co-chair of the IP protection
practice at Loeb & Loeb’s Los Angeles office,
said on the trade mark claims In-N-Out will need to show that
consumers are likely to be confused or mistaken into believing
that Doordash is affiliated with In-N-Out.

“In addition, the courts have recognized a
doctrine called ‘nominative fair use’ which
permits companies to refer to the trade mark of another
company,” Grace said in a statement. “In general, the
requirements are a need to refer to the trade mark, the use of
only so much of the trade mark as is reasonably necessary to
identify the other company, and that the speaker does not
suggest an affiliation or endorsement by the trade mark owner.
 In this case, one of the key the issues is whether
Doordash’s advertisements stayed within in
boundaries of the nominative fair use doctrine or whether
Doordash has gone too far.”

In our news and analysis this week: